Attorneys for Appellant
Attorneys for Appellee
Matthew Jon McGovern Steve Carter
Louisville, Kentucky Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Appeal from the Harrison Superior Court, No. 31D01-9911-CF-955
The Honorable Roger D. Davis, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 31A01-0110-CR-368
November 6, 2003
Defendants son, who had not been invited, crashed the party at some point
during the ev
ening. Phillip told him to leave about three times but
Defendants son did not. Ultimately, Phillip attacked Defendants son and kicked him
for about five or ten minutes. After the fight, at approximately one
or two in the morning of November 6, Defendants son left the party
and drove home. His head and body were badly bruised and swollen.
Upon returning home, Defendants son fell asleep without telling his parents about the
events at the party and without contacting the police. At about eight
oclock in the morning of November 6, Defendant Steven Springer, Jr., and his
wife learned that their son had suffered a beating the previous night.
Defendant became very angry about what had happened and decided to confront the
uals responsible for the beating. He grabbed his unregistered .45 caliber semi-automatic
handgun and drove with his wife to the Crains home. He had
not obtained any medical aid for his son at that time, nor had
he notified the police about the beating.
When he arrived at the Crains home, he loaded a bullet into the chamber of his gun before approaching. Defendant banged on the door and demanded to be let inside. One of the boys opened the door and Defendant asked if he was Phillip Crain. Another of the boys, Benjamin Waldo, ran to the basement when he saw Defendant approaching the house with a gun. Defendant heard shuffling behind the basement door and headed towards it. Benjamin heard Defendant cursing and yelling for Phillip as well as the sound of drums being kicked.
While this was going on, Jonathan Wendell was washing his face in the bathroom. Jonathan heard a commotion in the house and then was shot in the chest. The bullet that injured Jonathan traveled from Defendants gun, through a refrigerator in the kitchen, through the back wall, and into the bathroom.
After he was shot, Jonathan fell to his knees. Jonathan gathered himself
and then walked to the kitchen and asked Defendant what he was doing.
Defendant asked Jonathan if he was Phillip Crain. Defendant replied that
he was not and Defendant took him to the hospital. Jon
medical treatment, but the bullet remains in his lung because of the medical
risk of removal.
The State charged Defendant with Criminal Recklessness, a Class C felony. At
efendant admitted that he carried the gun into the house with a
bullet in the chamber and the hammer back but claimed that the safety
was on. He claimed that his weapon fired accidentally when he stumbled
as a result of jerking open the basement door. The State presented
evidence showing that Defendants gun had several working safeties and that the firearm
could not have discharged accidentally.
Defendant tendered instructions on the definition of negligence, definition of reckles
sness, and the
defense of accident to the trial court. The trial court rejected each
of these instructions over Defendants objection.
The jury found Defendant guilty of Criminal Recklessness.
At sentencing, Phillips father was granted restitution for property damage to his res
as well as the cost of his airline tickets back home from vacation
following the shooting. Defendant was sentenced to seven years incarceration with two
of those years suspended.
The Court of Appeals reversed the conviction. Although it found that the
trial court properly rejected Defendants tendered instruction on his accident defense, the Court
of Appeals concluded that the trial court erred in refusing to give Defendants
tendered instructions on ne
gligence. Springer v. State, 779 N.E.2d 555, 562-63, 564
(Ind. Ct. App. 2002). It also determined that the trial court improperly
granted restitution for the cost of airline tickets home from vacation. Id.
at 563. Judge Bailey dissented from the finding that the trial court
abused its discretion in rejecting the tendered instructions involving negligence. Id. at
564-65. We granted transfer. Springer v. State, 792 N.E.2d 39 (Ind.
This Court reviews a trial court's refusal to give a tendered instruction for
an abuse of discretion. We consider (1) whether the instruction correctly states
the law; (2) whether there is evidence in the record to support the
giving of the instruction; and (3) whether the substance of the tendered instruction
is covered by other instructions that are given. Forte v. State, 759
N.E.2d 206, 209 (Ind. 2001) (citations omitted).
The trial court gave the jury an instruction defining recklessly. In relevant part, final jury instruction no. 5 read: A person engages in conduct recklessly if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. (Appellants App. at 186.)
Defendant proffered two instructions as an alternative to the courts. The key factor distinguishing Defendants proposed instructions from the trial courts final instruction was their emphasis on negligence.
Defendants tendered instruction no. 2 also defined recklessly. It read: A person engages in conduct recklessly if he engages in the conduct in plain, conscious and unjustified disregard of the harm that might result therefrom, and the disregard involves a substantial deviation from acceptable standards of conduct. This requires the State to prove more than mere negligence on the behalf of the Accused. (Appellants App. at 175.)
Defendants tendered instruction no. 3 defined negligence. It said: Negligence is
lure to do what a reasonably careful and prudent person would have
done under the same or like circumstances, or the doing of some thing
which a reasonably careful and prudent person would not have done under the
same or like circumstances; in other words, negligence is the failure to exercise
reasonable or ordinary care. (Appellants App. at 176.)
Defendant claims that his tendered instruction no. 2 should have been used because the trial courts instruction was an incorrect statement of the law. Defendant suggests that the Indiana Court of Appeals has repeatedly held that the state must prove recklessness as opposed to mere negligence, and he suggests that his instruction defining recklessly more accurately states the law because it reminds the jury that recklessness is graver than negligence. (Br. of Appellant at 10.)
The instruction given by the trial court defined recklessly in terms almost identical to Defendants proposal. Indeed, the trial courts instruction closely tracks the statutory definition of recklessness. See footnote In its review of the matter, the Court of Appeals found that it is undisputable that the definition of recklessly itself was adequately covered by the trial courts instruction. Springer, 779 N.E.2d at 560. We agree that the trial courts instruction defining recklessly correctly stated the law.
Defendant also claims that
both of his instructions should have been given because
none of the trial courts jury instructions explained the difference between recklessness and
negligence and, therefore, the substance of his tendered instructions nos. 2 and 3
was not covered by other instructions that were given. He points out
that nowhere in the trial courts final instructions was the word negligence even
mentioned. (Br. of Appellant at 12.) A direct result, Defendant maintains,
is that the trial court effectively prohibited the jury from hearing any instruction
on any theory of his defense.
To this point, the trial court noted that the State had to prove that Defendant intentionally, knowingly or recklessly acted, not that he negligent[ly] discharged a firearm. (R. at 437.) The trial court commented that if the jury found that the State had not met its burden of proof, it would have to acquit the Defendant.
The Court of Appeals disagreed with the trial court. It held that
efendants substantial rights were most likely prejudiced by the failure of the trial
court to explain the legal concept of negligence. Springer, 779 N.E.2d at
560. In significant part, the Court of Appeals relied on Cichos v.
State, 243 Ind. 187, 184 N.E.2d 1 (1962), and Sipp v. State, 514
N.E.2d 330 (Ind. Ct. App. 1987), for this conclusion.
Cichos, the defendant was convicted of reckless homicide after he was involved
in a head-on collision. 243 Ind. at 188-90, 184 N.E.2d at 1-2.
He claimed that the trial court abused its discretion by failing to
give his tendered instructions, some of which explained negligence. Id. at 189-91,
184 N.E.2d at 2-3. This Court found that, in the context of
a reckless homicide charge in an automobile accident, the failure to give the
instructions constituted an abuse of discretion because the substance of the instructions was
not covered by any others given. Id. at 191-92, 184 N.E.2d at
Sipp involved a similar claim arising from an automobile accident. Relying on
Cichos, the Court of Appeals found an abuse of discretion when the trial
court failed to give instructions that it viewed as substantively the same as
those tendered in Cichos. See Sipp, 514 N.E.2d at 331-32.
On transfer, the State argues that it was not error for the trial
court to deny the instru
ctions because negligence was simply not an available defense.
(Br. of Appellee at 6.) In his dissent, Judge Bailey also
took this position. He argued that [n]egligence law presupposes that an individual
is engaged in lawful conduct which can be undertaken with due care for
the safety of another person but that Defendants actions were those of a
vigilante seeking retribution on his own. Springer, 779 N.E.2d at 564-65.
Viewed in totality, the facts support Judge Baileys analysis.
On the morning of November 6, 1999, Defendant learned that his son had
been involved in a physical altercation at the Crains home the previous night
after he tried to attend a party to which he had not been
invited. In a state of anger, Defendant grabbed his unl
icensed firearm and
he and his wife drove to the Crains home. Defendant did not
take a moment to notify the police that his son had been in
a fight, nor did he obtain medical aid for his son. At
the Crains home, Defendant loaded a bullet into his gun later admitting
that it was locked and cocked with one in the chamber. (R.
at 383, 386.) Still angry, he proceeded to bang on the door
demanding entry and when he gained entry, he demanded to know the whereabouts
of Phillip Crain, whom he believed had beaten his son the night before.
In the midst of this activity, Defendants gun fired and a bullet
became lodged in Jonathan Wendells lung, where it remains to this day.
At trial, evidence was presented showing that Defendants gun had several working saf
and that the gun could not have discharged accidentally. The State maintains
that Defendant intentionally fired a warning shot but Defendant maintains that the firing
was an accident.
Under these facts, we are unable to say that the trial court abused its discretion by denying an instruction on negligence. Negligence, as used by Defendant here, is an argument not a legal defense. Defendants legal defense was and is that he is not guilty of criminal recklessness because his actions did not meet the legal requirements of recklessness. The jury was properly instructed that the State was required to prove beyond a reasonable doubt that Defendant had acted in plain, conscious and unjustified disregard of the harm that might result therefrom, and the disregard involve[d] a substantial deviation from acceptable standards of conduct. Defendant was free to and did argue that he did no more than fail to exercise reasonable or ordinary care. As the trial court accurately observed, Defendants negligence argument is simply a statement that State failed to prove that he was reckless. No additional instruction to the jury on this point was required.
Another factor pointing away from a finding of an abuse of discretion on the trial courts part is that no reasonable interpretation of the facts suggests that Defendants conduct was merely negligent, that he merely failed to exercise reasonable or ordinary care. As Judge Bailey pointed out, there is no definition of reasonable and ordinary care that encompasses the circumstance of an uninvited person seeking confrontation in the occupied residence of another person, while wielding a loaded, cocked weapon without the safety mechanism engaged. Springer, 779 N.E.2d at 565. From the very beginning, Defendant engaged in conduct in which he had no right to engage and which, when viewed in its best light, indicates an intent to intimidate. While the criminal code is willing to excuse the use of force in certain circumstances to protect against certain unlawful activity, it does not countenance and will not sanction premeditated retaliation for past violence. Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003).
While the jury had the responsibility of determining whether Defendants conduct was reckless,
there was no legal question of negligence at stake. In this respect,
the factual circumstances of this case distinguish it from Cichos and Sipp.
Both of those cases involved conduct that can be undertaken with due care
the conduct of driving a motor vehicle. See Cichos, 243 Ind.
at 189-90, 184 N.E.2d at 3; Sipp, 514 N.E.2d at 330.
The Court of Appeals found that it was not error to deny the
accident instruction because Defendant cannot show that his substantial rights were prejudiced by
not giving such an instruction. Springer, 779 N.E.2d at 563. It
reasoned that were the jury to decide that the shooting was a result
of an accident, there is no question that the jury could not find
that he was reckless. Id. We adopt the opinion of the
Court of Appeals on this point.
Relying on our holding in
Roach v. State, 711 N.E.2d 1237 (Ind. 1999),
and the text of Ind. Code § 35-50-5-3 (1998),
the Court of Appeals
found that the trial court erred in requiring Defendant to reimburse for the
costs of the airline tickets. Springer, 779 N.E.2d at 563. It
reasoned the General Assembly has not authorized the trial court to include this
expense in its restitution order because none of the statutory restitution categories includes
any language that could be construed to authorize it. Id.
We summarily affirm the opinion of the Court of Appeals on this point.
Shepard, C.J., and Boehm, J., concur.
Dickson, Justice, dissenting.
The Court concludes that no additional instruction was required regarding negligence and that
"no reasonable interpretation of the facts suggests that Defendant's conduct was merely negligent."
Slip op. at 8. I respectfully dissent, believing, as did the
Court of Appeals, that the trial court erred in refusing to give the
defendant's tendered instructions defining "recklessly" and "negligence."
The charging information alleged that criminal recklessness occurred when the defendant "discharged a
.45 caliber handgun causing the bullet/projectile to enter the chest of Jonathan Windell"
(R. at 14). It did not charge that the defendant was
reckless by entering a dwelling full of people with a loaded, cocked handgun.
In defense, the defendant claimed that the gun di
scharged as a result
of an accident, or at the most negligence, and that his conduct did
not rise to the level of recklessness. He testified at trial that,
because the occupants of the house had baseball bats, he took the gun
with him for self-defense, he believed that the safety was on, and he
carried the gun in his non-dominant hand because he had no intention of
using it. He stated that, after entering the house, he heard shuffling
behind the door leading to the basement and, because he didn't know who
was on the other side, he opened the door and stepped back for
his own protection. As he did so, he stumbled backwards, and accidentally
discharged the weapon. He insisted that at no time did he point
the weapon at anyone, but kept it down by his side. The
bullet passed through a refrigerator and a wall, ultimately injuring a third party
in another room.
A defendant in a criminal case is entitled to have the jury instructed
on any theory of d
efense that has some probative foundation in the evidence,
however weak and inconsistent. Wilson v. State, 268 Ind. 112, 117, 374
N.E.2d 45, 48 (1978); Hedrick v. State, 229 Ind. 381, 389, 98 N.E.2d
906, 910 (1951); Taylor v. State, 629 N.E.2d 852, 855 (Ind. Ct. App.
1994); Dayhuff v. State, 545 N.E. 2d 1100, 1102 (Ind. Ct. App. 1989).
Although negligence is technically not a defense to criminal recklessness, prior Indiana decisions
have often emphasized that to prove recklessness, the State must prove that a
defendant acted recklessly and not merely negligently.
See, e.g., Beeman v. State,
232 Ind. 683, 690, 115 N.E.2d 919, 921 (1953); Warner v. State, 577
N.E.2d 267, 269 (Ind. Ct. App. 1991); Young v. State, 161 Ind. App.
532, 546, 316 N.E.2d 435, 443 (1974); Coconower v. Stoddard, 96 Ind. App.
287, 293, 182 N.E. 466, 469 (1932).
Cichos v. State, 243 Ind. 187, 184 N.E. 2d 1 (1962), this
Court found that the trial court committed reversible error in refusing to give
tendered negligence instructions in a reckless homicide case. The Court stated:
Whether the evidence in this case establishes that the deaths alleged in the indictment o ccurred from a mere accident, from negligent conduct or from willful and/or wanton misconduct so as to amount to recklessness, is dependent on the weight given the various aspects of the case and the evidence by the jury. The very purpose of the jury is to determine, after deliberation and pursuant to the court's instructions, the legal category into which the jury feels the defendant's conduct falls. The appellant's theory of the evidence and the law establishing such theory was never given to the jury in any instructions.
Id. at 192, 184 N.E.2d at 3. (emphasis added). Relying on Cichos,
the Court of Appeals in Sipp v. State, 514 N.E. 2d 330 (Ind.
Ct. App. 1987), found that the trial court erred in refusing to give
a tendered negligence instruction in a reckless homicide case. Judge Garrard explained
in his concurring opinion:
[T]he court's refusal to give instructions as to what does not constitute reckles sness is not rendered harmless because of the instruction given as to what would constitute recklessness. Indeed, I have no quarrel with holding that in cases where the understanding of a particular term is crucial, the court may not refuse a correctly drawn instruction that serves to amplify the definition by insuring that the jury understand the difference between the crucial conduct and some closely similar conduct. The purpose of the instructions is to fairly advise the jury on the law applicable to the case.
Id. at 332. Similarly, in Rickner v. Haller, 124 Ind. App. 369,
379, 116 N.E.2d 525, 530 (Ind. Ct. App. 1954) the Court of Appeals
In this case, the fact of wanton or willful misconduct is in issue. Appellant was, therefore, entitled to instructions which defined and distinguished such conduct from ordinary negligence. This rule has been stated as follows: "Where the que stion of 'willfulness,' 'wantonness,' and 'recklessness' are in issue, those terms should be defined and distinguished from 'ordinary negligence.'"
Id. at 530 (quoting 65 C.J.S., Negligence, § 289c).
For the defendant to have a fair opportunity to present his defense, it
was crucial that the jury understand the difference between negligence and recklessness.
Distinguishing between reckless and negligent conduct is not an easy task, and "even
those trained in the legal profession have grappled with abstract notions regarding degrees
Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App.
1983). In the present case, the jury expressed a similar concern.
During deliberations, it sent a note to the judge requesting the legal definition
of negligence, but none was provided by the court.
I believe that the defendant's tendered instructions were correct statements of law, were
based upon the evidence, were not adequately covered by any other instructions, and
ssary to enable the jury fairly to consider the defendant's theory of
defense. Because the trial court refused these instructions, I would reverse and
remand for a new trial.
Rucker, J., concurs.
The court shall base its restitution order upon a consideration of: (1) property
damages of the victim i
ncurred as a result of the crime, based on
the actual cost of repair (or replacement if repair is inappropriate); (2) medical
and hospital costs incurred by the victim (before the date of sentencing) as
a result of the crime; (3) earnings lost by the victim (before the
date of sentencing) as a result of the crime including earnings lost while
the victim was hospitalized or participating in the investigation or trial of the
crime; and (4) funeral, burial, or cremation costs incurred by the family or
estate of a homicide victim as a result of the crime.